–Shamshad Pasarlay, Mohammad Qadamshah, & Clark B. Lombardi, University of Washington School of Law

Afghanistan’s flawed system for electing presidents and resolving electoral disputes led recently to a political crisis that nearly split the country. The immediate crisis was resolved through a special power sharing agreement between the two leading candidates, Ashraf Ghani and Abdullah Abdullah. As part of the agreement, the candidates agreed to arrange for the sitting in the near future of a Loya Jirga—an institution that can serve as a constitutional amending convention. Empowered to make significant changes to the constitution, the sitting of this Loya Jirga will present Afghanistan with a significant opportunity to debate alternative proposals for constitutional reform and embrace reforms that have a good chance to improve the efficiency and legitimacy of Afghan governments going forward. The Loya Jirga, however, will be composed largely of figures elected in the upcoming parliamentary and district council elections. Unfortunately, there are still doubts about the election system, and there are fears that these elections, like the earlier Presidential ones, may be problematic. If so, one of the parties to the power-sharing deal may reject the legitimacy of the Loya Jirga and its proposed constitutional reforms. Afghanistan will thus lose an opportunity to reconstitute itself in a manner likely to bring stability to the country. It is of the greatest urgency that Afghanistan work hard to reform its voting system, method of running elections, and method of contesting results to ensure that the upcoming parliamentary elections have maximum legitimacy.

Afghanistan’s History of Problematic Elections

Since the fall of the Taliban and the enactment of Afghanistan’s 2004 Constitution, Afghanistan has seen numerous elections for governmental offices. Few have been exemplary. The constitution provides for an Independent Electoral Commission (IEC) that is empowered to supervise all elections in the country. It does not, however, give any details regarding its framework and responsibilities, or the mechanism that it should use to resolve election complaints. The former President, Hamid Karzai, took advantage of these lacunae to entrench himself. The 2004 and 2005 electoral laws were enacted through presidential decrees because no Parliament had been elected.

Despite opposition from civil society and political parties, the presidential decree established an unusual system for parliamentary elections which combined multi-seat constituencies filled through elections using a single non-transferrable vote. Moreover, under article 8 of the Law on Organization, Duties, and Authorities of the IEC, the president has the authority to select nine of the 27 candidates introduced by the selection committee as the members of the IEC for six years. For a variety of reasons, the adoption of this system worked to the advantage of candidates in power generally and to the benefit of Karzai specifically. Through the President’s influence over the IEC, Karzai and his supporters were allegedly able to ensure that disputes were resolved in a manner that benefitted them.

Since 2004, Afghanistan has held eight elections: three presidential elections, three provincial council elections, and two parliamentary elections. However, none of these elections went smoothly. Critics protested that systematic fraud and political manipulation influenced the results of each. Notwithstanding these complaints, Karzai refused to sign the parliament-approved reforms of the Afghan election law in early 2013—opposing in particular, the presence of two international commissioners on an Independent Electoral Complaints Commission (IECC). Subsequently, President Karzai appointed nine elections commissioners with close ties to the presidential palace.

It was against this backdrop that the presidential election in 2014 foundered and nearly split the country. Term limits prevented President Karzai from running in the 2014 presidential elections. The runoff election was contested between Ashraf Ghani (now President) and Abdullah Abdullah (now Chief Executive). At least in the first round of these elections, there were few claims of manipulation or fraud. This happy situation was, however, not to last.

The Divisive 2014 Elections

Among a large number of first round candidates, two figures appeared most popular. The former foreign minister Abdullah Abdullah was associated with Tajiks and other non-Pashtun groups who felt alienated from President Karzai’s government and wished to reclaim their declining power. The former finance minister Ashraf Ghani drew the bulk of his support from Pashtun groups who wished to leverage gains made during Karzai’s presidency. Ethnic Uzbeks also supported Ghani because of the appointment of Abdul Rashid Dostam as the first vice-president. Ghani and Abdullah were divided by more than identity politics. Debates during the Presidential election campaign made clear that President Ghani and Chief Executive Abdullah Abdullah have very different views about how Afghanistan’s government should be structured and how much power regional interests should be encouraged to play in the Afghan political system.

Embracing a centralizing vision, Ghani championed the strengthening and re-organization of the executive branch, along with commitments to devolve some power eventually to regional bodies that could develop policies tailored to the needs of their regions. Abdullah Abdullah proposed that the Constitution’s amendment procedures be invoked to move Afghanistan to a parliamentary form of government that was likely to empower politicians representing regional interests and appeared to favor a stronger form of devolution. In short, this was an election in which Afghans were faced not only with representatives of different communal groups but also with figures who proposed to reform Afghanistan’s government in very different ways. It should have been an opportunity for Afghans to debate and decide between rival visions of government for Afghanistan. A botched election unfortunately ended any chance of the election deciding through democratic means which way Afghanistan should go.

Although Abdullah won the first round of elections, he did not win a large enough percentage to avoid a runoff. In a second round runoff between Abdullah and Ashraf Ghani, when Abdullah fell behind, he and his supporters accused the IEC of systematic fraud, corruption, and electoral engineering. In the end, they declared that the IEC was illegitimate and preemptively refused to recognize any finding that he had lost. A complete political deadlock thus emerged on the results of the 2014 presidential election, and the ensuing crisis threatened to push Afghanistan to the edge of violent breakup.

The Formation of a Power Sharing Government and the Agreement to Convene a Special Constitutional Assembly (The Loya Jirga) to Amend the Constitution

Ultimately, an extra-constitutional power-sharing agreement ended the political deadlock. A National Unity Government Agreement between Ghani and Abdullah provides that Ghani will be recognized as President of Afghanistan and Abdullah will be recognized as its Chief Executive—a position not envisioned in the 2004 Constitution. The President will cooperate with the Chief Executive in appointing ministers and setting policy. Together, they will appoint a commission to draft proposed amendments to the Constitution; the President will then convene a Loya Jirga, a grand assembly, that is empowered under the Constitution to debate, approve or modify proposed amendments.

The hastily negotiated power sharing arrangement is only a stopgap measure. It leaves open as many questions as it answers and disagreement continues to impede the day-to-day functions of government. Stability is likely to return only if a Loya Jirga with democratic legitimacy is able to debate and ratify constitutional amendments that improve the efficiency of Afghanistan’s government while giving all sectors of the divided society a sense of ownership. Democratic legitimacy is crucial because it is likely to be a site of significant contest over the nature of Afghan governance going forward. Based on Abdullah’s statements in campaign debates, his supporters will push for a constitutional amendment that creates a parliamentary form of government or a semi-presidential system with a strong prime minister. Abdullah would naturally expect to serve as prime minister in such a system. Based on his campaign speeches, it seems that Ghani may favor maintaining a presidential system or creating a semi-presidential system with a very weak prime minister. If it does, he may prefer that his rival Abdullah not be elected to the post of prime minister. Either decision will need the imprimatur of democratic legitimacy. Unless the electoral system is reformed, however, it is not clear that a Loya Jirga can be seated that has the democratic legitimacy necessary to decide between the rival visions of these two candidates in a way that the people will trust.

How Ongoing Perceptions of Problems with Afghanistan’s Electoral System may Delegitimize the Proposed Loya Jirga

Under article 110 of the Constitution, a Loya Jirga shall be comprised of the members of both houses of the National Assembly and presidents of the provincial as well as district councils. While provincial councils are elected, the National Assembly and district council elections are yet to be held. The legitimacy of the Loya Jirga will rest upon the legitimacy of the elections that decide its members. In a hopeful sign, the National Unity Government Agreement agreed not only to share power, but also to enact fundamental reforms to Afghanistan’s electoral system (laws and institutions). In a first step, on March 22, 2015, President Ghani issued a decree appointing an election reform commission to prepare and propose reforms on electoral institutions to the leaders of the National Unity Government.

The Electoral Reform Commission (ERC) is supposed to develop plans for reforming the election law, the structure of both the IEC and the IECC and the overall electoral systems of Afghanistan—consistent with the possible amendment to the Constitution. Specifically, under article 2 of the presidential decree, the ERC is expected to work impartially, precisely, and professionally on preparing reform proposals that will be first sent to the Chief Executive and then to the President for final approval. Such an institution needs to be trusted by people across the political spectrum. Apparently in recognition of this fact, it was announced that the ERC would be formed with representatives from the office of the President, Chief Executive, members of civil society, and representatives from domestic observer groups. In fact, however, it mostly consists of individuals coming from the two teams—six members from each team, one member from the UN, and the other two from civil society.

Almost all of the current membership of the ERC, other than the UN representative, is divided between supporters of Ghani and Abdullah. Civil society organizations critical of the ERC have decried this politicization. Thus, achieving consensus on issues such as the appointment mechanism of the members of the IEC and IECC and the replacement of the electoral system will be difficult.

Furthermore, the ERC does not seem committed to significant reform. After the elections, civil society organizations held debates and workshops on the electoral system. They made some proposals to be considered, but it seems that their proposals have been ignored. Critics argue on the basis of this that there is no political will among Afghan elites for implementing significant electoral reforms.

Finally, the ERC may lack the political muscle to implement changes to the electoral system. Even if the members of the ERC were able to overcome their partisan positions to agree on significant reforms, it is not clear that they even have the power to impose them. Critics argue that the authority of the ERC is not sufficiently defined, as the presidential decree is silent on the extent of the ERC’s powers. It appears that the ERC has only an advisory role, and the leaders of the national unity government actually decide whether or not to approve the recommended reforms. According to the presidential decree, the ERC is to review proposals by civil society and other NGOs and provide one to the Chief Executive. If approved by the Chief Executive, the proposal will be submitted to the President for final approval. Therefore, Abdullah and Ghani, not the ERC, will make final decisions on electoral reforms.

Disputes have emerged not only about the leadership and power of the ERC but also about what reforms it should enact. It appears that Abdullah and his team have proposed to eliminate the current electoral single non-transferable vote system—and replace it with a mixed electoral system partly based on proportional representation. It seems that they believe such a system will help bring large numbers of Abdullah’s supporters into the parliament and swing the balance of power in the Loya Jirga in favor the governmental reforms he prefers. While Afghanistan still lacks effective and strong political parties, proportional representation will likely lead people to vote on an ethnic basis. The last President and current president are Pashtuns, a situation that has created resentment among some non-Pashtun communities. If Abdullah’s supporters all around the country, including areas where they are a minority, are given an opportunity to vote for national parties and candidates who support Dr. Abdullah for prime minister, a number of observers believe they will come out in large numbers to do so. It would not be surprising, therefore, if President Ghani opposes this reform as one that stacks the election against him. If either side is able to ram through a method of election that the other deems unfair, the legitimacy of the politicians will be jeopardized—along with that of any Loya Jirga on which they serve.

It is time for Afghanistan to engage in a serious effort to reform its electoral systems and institutions and to think about how best to do that to improve not the short term political interests of its most powerful politicians, but the perceived legitimacy of elected officials. A flawed presidential election in 2014 brought the country to the brink of crisis. Afghanistan dodged a bullet by creating a power sharing government and by agreeing that in the near future, a Loya Jirga would be convened to resolve some of the hard issues about how the Afghan government should be restructured—issues that were raised during the presidential campaign but which the disputed election failed to resolve.

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